Welcoming the Marrakesh Treaty into a Consequentialist Framework

 
Curing the Book Famine
The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities is widely lauded as a miracle. The Treaty aims to cure the global “book famine” that millions of the blind and visually impaired have suffered from due to a lack of access to published knowledge. It is the first copyright treaty to expressly proclaim a foundation based on human rights principles, specifically those set out in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities.
In order to facilitate access to knowledge for the visually impaired, the Treaty obligates states to create limitations or exceptions to copyright that will allow “authorized entities” to convert works into accessible formats for the print disabled. Furthermore, it requires states to permit the cross-border exchange of these accessible copies.
This piece examines whether a Treaty grounded strongly on human rights justifications can fit comfortably into a U.S. copyright regime which is primarily grounded in utilitarianism.
 
Marrakesh and the U.S. 
On September 30, 2016, the Marrakesh Treaty entered into force. At the time this post was written, it had 25 Contracting Parties. The United States played a significant role in the Treaty’s conception, but has yet to ratify it. However, it was sent to Congress for ratification in February upon recommendation by President Obama. The United States Department of Commerce created a draft bill that included the proposed changes required to implement the Treaty. Their conclusion was that only minor modifications to U.S. copyright law would be necessary.
Indeed, U.S. copyright law already has existing provisions in line with the Treaty’s primary requirements. There is already a copyright limitation on reproduction for the blind or those with other disabilities in 17 U.S.C. §121, which states:

It is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

Even outside the scope of a §121 limitation, the Second Circuit in Authors Guild, Inc. v. Hathitrust, 755 F.3d 87 (2d Cir. 2014), held that making copies that grant access to the print-disabled constitutes fair use under §107.
The most significant difference in implementing Marrakesh would be permitting the cross-border exchange of accessible copies. Other minor alterations required for implementation would be to broaden the definition of the beneficiaries to this copyright limitation, and to expand the types of copyright subject matter covered by the limitation.
 
Human Rights or Copyright?
The conventional view is that copyright law in the U.S. is founded on consequentialist justifications, namely utilitarianism. The most significant evidence for this is the U.S. Constitution’s Copyright Clause, giving Congress the power to “promote the Progress of Science and useful Arts.” The Supreme Court has also indicated that utilitarian justifications also underlie the doctrine of fair use specifically. See, e.g., Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
The rhetoric of natural rights has not been taken favorably in the copyright context. For example, in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the Second Circuit highlighted that “copyright is not an inevitable, divine, or natural right.” That was admittedly in the context of the author’s rights, whereas in the Treaty, the human rights in focus are particular users’ rights. Nevertheless, natural rights-based justifications appear to be in tension with the status quo of conventional U.S. copyright rationales. The utilitarian justification in U.S. copyright is consequentialist, with the desired outcome of progress. It does not hinge upon fundamental rights. That being said, it could be argued that the Marrakesh Treaty’s justifications can easily be integrated into a consequentialist system, notwithstanding its focus on human rights. This is mainly because it is a treaty that is ultimately about striking a balance between owners and users, as copyright conventionally does.
Although there is one clear problem the Treaty aims to solve, there is a plurality of justifications. Upon closer inspection, there are other justifications for the Treaty that go beyond human rights. For example, the preamble of the Treaty cites more than just human rights justifications. The preamble also has utilitarian motives similar to the U.S. system:

Emphasizing the importance of copyright protection as an incentive and reward for literary and artistic creations and of enhancing opportunities for everyone, including persons with visual impairments or with other print disabilities, to participate in the cultural life of the community, to enjoy the arts and to share scientific progress and its benefits.

Therefore, although Marrakesh is undoubtedly a significant achievement in advancing the rights of and promoting equal opportunity for the visually-disabled, one should not assume that the human rights elements are exhaustive justifications. Furthermore, the Treaty clearly expresses deference to existing treaties upholding author’s rights, most significantly, the Berne Convention.
It is thus preferable to view the Marrakesh Treaty as a copyright treaty inspired by human rights considerations instead of a human rights treaty impacting domestic copyright regimes. Why is this difference significant? Two reasons.
Firstly, it is a more accurate account of the Treaty considering its constant reemphasis in Article 11(a)-(d) on “not unreasonably (prejudicing) the legitimate interests of the author,” and in the preamble, “Recognizing the need to maintain a balance between the effective protection of the rights of authors and the larger public interest.” The rights of the visually disabled are thus part of the larger public interest. In other words, the Treaty mainly seeks to strike a balance that copyright law has always sought to do. While human rights law also involves the balancing of rights, the rights of the beneficiaries are usually the starting point. The wider public interest, or the rights of another, are usually used as justifications for impinging on those rights. Taking that approach in the context of Marrakesh might create the illusion that the rights of the visually disabled beneficiaries are the focus, which might make copyright owners, mistakenly, feel under-prioritized. This could result in undue opposition to the Treaty by various stakeholder groups around the world.
Secondly, one should be cautious about stressing human rights as this would attract the unnecessary attention of skeptics of natural rights, especially in the realm of intellectual property law, as noted above. Such a misunderstanding would give them reason to oppose the ratification of Marrakesh.
 
Rights, Consequentialism, and Progress
Putting aside the fact that the Treaty has clear consequentialist motives, upholding human rights do not necessarily have to be in conflict with utilitarian criteria. Reemphasizing rights can in fact contribute to the progress favored by a consequentialist framework.
Respecting and enforcing the rights to education of the visually disabled means empowering them to realize their full creative potential. Marrakesh lights a beacon into the minds of a part of society that copyright law has left behind. A treaty that upholds rights merely reestablishes human decency and equal opportunity. Morality cannot be measured in opportunity cost. The true costs of neglecting this segment of society however, are the contributions that never came to be during decades of stifled potential. Rights enable creation, creations become contributions. Marrakesh is not merely about moral progress, but cultural and scientific progress as well.
 
Neil Yap is a LLM candidate, 2017, at NYU School of Law.